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Employment law specialists
April 2017 Review

Welcome to our latest monthly employment law review. This month's reports cover a man who wanted five weeks' summer holiday every year on religious grounds, how to deal with employees sleeping at work, election proposals concerning workers' rights from the main parties and the practical effect on employers of the introduction of the apprenticeship levy.

It's often said that employers can be thoughtless and insensitive when it comes to engaging with their employees. In that category and with a new entry somewhere near the top of the charts we welcome The Tate in London. Although The Tate is a highly respected collection of galleries with a very high profile, many of their London employees are not paid the London living wage and have recently had their canteen discount taken away. It is therefore hardly surprising that they were, to say the least, unimpressed when asked by management to contribute to a leaving collection for departing director, Sir Nicholas Serota (2015 salary £165,000). And what might his "surprise gift" be - no less than a boat! According to The Guardian those asked to contribute included security staff, cleaners, cafe workers and gift shop staff. The notice issued to all staff said that management had thought "long and hard" about an appropriate gift, adding "Nick loves sailing and this would be a lasting and very special reminder of the high regard which I know so many of us have for Nick and his contribution to Tate". Far be it from me to suggest that our artistic and cultural friends are living up to their reputation of being in a world of their own which is an invitation (but no justification) for them to be crassly insensitive. Surely someone must have realised...?

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Kind regards,

Martin Malone

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This month's news
  Sardinian church   Is requesting a holiday from July to September manifestation of a religious belief that is capable of protection?
 
by Martin Malone
 

Where do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person's belief is used as justification for discriminating against others, there can be no case for allowing the alleged victim of discrimination him or herself to engage in discriminatory acts. Another question is whether and if so at what point the manifestation of a religious belief tips over the edge between a "reasonable" accommodation and one which, perhaps for a number of reasons, "just goes too far". That leads us to the remarkable case of Mr Gareddu, a practising Roman Catholic of Sardinian origin.

Gareddu v London Underground Limited concerned Mr Gareddu's requests for summer holidays running from 27 July to 2 September (five consecutive weeks). He joined London Underground in 1990 and was entitled to 38 days' holiday per year (including Bank Holidays). From 2009 to 2013 he took five weeks' consecutive summer holiday to travel to Sardinia with his two brothers to visit his mother and attend a number of religious festivals, up to 17 per visit. He said that he would attend the festivals for those saints with whom he felt a particular affinity.

In March 2013 a new line manager, Mr Cross, took over. He refused the request for five weeks' holiday and said that, in future, he would be unlikely to be granted more than 15 continuous days during the summer holiday period. As it happened the 2014 trip was pre-booked and allowed but a holiday request from 27 July to 2 September 2015 was refused. Mr Gareddu contended that this amounted to indirect religious discrimination, contrary to section 19 of the Equality Act 2010.

At a tribunal in December 2015 Mr Gareddu's claim failed on the basis that the "asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September" was not made in good faith. While attending religious festivals was a manifestation of religious belief, being required to do so within a specific five-week period was not in itself a specific manifestation capable of protection under the Act.

Mr Gareddu appealed to the Employment Appeal Tribunal on four grounds:

  1. The tribunal took the wrong approach by failing to make findings as to the provision, criterion or practice (PCP) in issue, whether the employer applied that PCP to people with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic, whether participating at numerous religious festivals was a typical manifestation of the religious beliefs of Sardinian Catholics, whether Mr Gareddu was put at a disadvantage as a result of the PCP and, if so, whether the disadvantage was justified as a proportionate means of achieving a legitimate aim.
  2. The tribunal imposed an unwarranted additional requirement that religion should be the sole or primary motivation for the manifestation in order to benefit from protection under section 19.
  3. It considered an irrelevant factor - the desire to worship collectively with his family - when considering whether he had acted in good faith.
  4. It adopted a perverse construction of Mr Gareddu's evidence by finding that he had claimed to attend the same 17 events annually and, flowing from this, that he had changed his evidence in the course of the hearing.
 
Read more
 

  asleep   Can workers receive payment for ‘sleeping’ at work?!
 
by Katharine Kelly
 

The Employment Appeal Tribunal (EAT) has recently considered this question, more specifically whether workers are entitled to the national minimum wage when ‘on-call’ (or sleeping!) at work.

In the case of Focus Care Agency v Roberts, along with two other cases heard at the same time (Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake), Mrs Justice Simler (President of the EAT) assessed whether the Tribunals had been correct in deciding whether ‘sleep-in’ time should be considered ‘time work’ for the purposes of the National Minimum Wage Regulations.

The EAT essentially concluded that it depends on the circumstances – although it disapproved of the approach taken where workers are deemed to be working simply by being present on the employer’s premises or even provided with accommodation when being on-call. The EAT decided that a multi-factorial approach was required, or in other words it depends on the facts of each case.

Employers will obviously be asking themselves at this point how you differentiate between cases where a worker is "working" throughout a sleep-in shift, being paid to be on the employer's premises "just in case", and those where a worker is "on call" and not deemed to be working the entire time? The EAT guidance provided is as follows:

  1. Consider the employment contract in addition to the nature of the engagement and the work to be carried out. Does the contract provide for the period in question to be part of the employee's working hours? Depending on the facts of the case it may be appropriate to consider whether the contract provides for pay to be calculated by reference to a shift or by reference to something else, and if so, to what; or to whether a period is directly specified during which work is to be done.
  2. The fact that a worker has very little/nothing to do during certain hours does not mean that they are not working. A particular level of activity is not required. An individual can be working simply by being present even if they are simply required to deal with unexpected circumstances, but are otherwise entitled to sleep – this is the case even where the likelihood and frequency of an untoward matter arising is low.
  3. No single factor is determinative and the weight each factor carries varies according to the facts of the particular case in question. Potential relevant factors in determining whether a person is working by being present include:
 
Read more
 

  McDonalds   More about zero hours contracts and other election proposals
 
by Martin Malone
 

On 29 April the Labour Party announced that, as part of its 20 point election package for workers, it would ban zero hours contracts, end unpaid internships and end the public sector pay cap. Although well-received by many, the subsequent round of interviews on the Sunday morning politics shows quickly flagged up a problem: what about those who want to be employed on zero hours contracts? It was pointed out that these contracts are convenient for many, including students who want to earn some casual income when time permits. Another problem with a ban is where the line is drawn. Would, four, six or ten hours' contracts be permitted?

Meanwhile, McDonalds has announced that it is giving 115,000 workers on zero hours contracts (approximately 10% of the entire UK zero hours workforce) the option of moving to fixed contracts with a guaranteed number of hours per week. The move came in response to feedback from staff that they were struggling to obtain loans, mortgages and phone contracts without being able to demonstrate that they had a secure income. However, in the trial run at 23 sites, 80% of staff chose to stay on their existing contracts when offered four, eight, 16 or 35 hours per week contracts (in line with their existing typical working hours).

Other notable proposals in the Labour Party's Promise to Workers include:

  • guaranteeing trade unions a right to access workplaces;
  • four new Bank Holidays;
  • full employment protection from day one (rather than, for example, the two year qualifying period for protection from unfair dismissal);
  • abolition of employment tribunal fees;
  • doubling paid paternity leave and increasing the rate payable;
  • strengthening protection from redundancy when the individual concerned is pregnant or on maternity leave;
  • reinstatement of protection against third party harassment.

The Conservative Party has announced that its manifesto will include the replacement of the Mental Health Act and "sweeping reforms" to the Equality Act 2010 "to protect those with depression and anxiety from being discriminated against at work".

 
Read more
 

  Money   The Apprenticeship Levy – how am I affected?
 
by Katharine Kelly
 

As you may have expected, the Government’s initiative to introduce three million new Apprenticeships by 2020 has created a funding dilemma - the solution being that the shortfall will essentially be funded by employers in England who have an annual pay bill of over £3m.

The levy came into force on 6 April 2017 and is set at 0.5% of an employer’s total wage bill. It is paid via PAYE monthly and in return, each employer receives an annual allowance of £15,000 to spend on approved apprenticeship training programmes – this allowance is also applied monthly and any funds not used by employers can be carried forward.

Employers are able to access a ‘digital apprenticeship service’, an online system where they can manage how much they are spending, and recruit apprentices through various training providers.

Many employers have argued that they should be permitted to decide how their own training budgets are allocated, whilst others are concerned that the initiative has placed more emphasis on the quantity rather than quality of training provided.

 
Read more
 

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Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

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Katharine Kelly
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Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.

     
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Sean Carty
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Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.

     
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Martin Malone
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Martin is a director of Canter Levin & Berg Limited and its Chief Operating Officer. He splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.

     
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